October 19, 2010, New York – Today, Federal District Court Judge Nicholas Garaufis issued a scathing ruling in the ongoing case against the City of New York and the Fire Department for its discriminatory hiring practices. Saying, “The City’s shifting and contradictory positions have needlessly diverted the parties from the critical work of developing a new examination,” the judge enjoined the City from hiring off the last exam in any way except for the five non-discriminatory options he had presented in his September 13 decision. The Vulcan Society of Black Firefighters has said repeatedly that it wants the City to be able to hire firefighters if the need is there as long as it hires fairly.

The judge had already determined the City discriminated in its hiring for decades and struck two previous exams challenged by the Vulcans as unlawfully discriminatory; the issue in today’s ruling came about because, several months ago, the City claimed it needed to hire new recruits off a more recent – 2007 – test (exam number 6019).  Given the Court’s findings of unintentional and intentional discrimination, and in light of similarities between the 2007 exam and the previous exams, the Court ordered a hearing on its lawfulness.  On August 4, Judge Garaufis ruled that the 2007 exam violated the law because it had a disparate impact on Blacks and Latinos and did not meaningfully distinguish between qualified and unqualified candidates.  Nevertheless, Judge Garaufis, in an attempt to strike a balance between the mandates of civil rights laws and the City’s claimed hiring needs, ruled that the City could engage in interim hiring so long as it did so in a non-discriminatory manner, a move supported by the Vulcan Society, the professional association of Black firefighters.

The City negotiated with the parties for several weeks and then, in an about-face last month, refused to select a non-discriminatory method for hiring entry-level firefighters, even though the court gave it the freedom to choose from among five different methods – all of which involved hiring from individuals who had taken Exam 6019 – to select firefighters until a new, lawful  firefighter entrance exam is created.  One of the options rejected by the City closely resembled its own proposal, as noted by the Court today.

In today’s ruling, the judge also ordered all new submissions by the City to be personally signed by Michael Cardozo, the head of the Law Department, in order to ensure the “coherence” of the City's positions.
 
In his ruling today, Judge Garaufis wrote that the City “first represented that its need for firefighters was based on safety, and later that it was based on financial considerations. Now, the City asserts that even the financial benefits of hiring are minor – and it appears to be contemplating eliminating existing firefighter jobs to save money. The City has also rejected interim hiring procedures that would have allowed it to hire many of the firefighter applicants it has already processed. Some of those applicants have been patiently waiting to join the Fire Department since well before July 2008, the last time that the City hired new firefighters.”

The judge warned today, “This is simply the latest episode in the City’s long campaign to avoid responsibility for discrimination in its Fire Department, whatever the cost. Should this conduct continue, the court will be forced to consider whether litigation sanctions are appropriate.” 

Attorneys from the Center for Constitutional Rights and the law firm of Levy Ratner representing the Vulcan Society, issued the following statement:

The City made the parties waste time and resources for two months to go through this process, and then completely changed its position. Today the judge took the City’s representatives at their word and told them they are now prohibited from hiring except in one of the five ways presented in his previous ruling, until there’s a new test that is fair and actually measures job performance. All of the previous tests have been shown to have no bearing whatsoever on ability. Using the 2007 test or scores from any of the previous tests is like hiring a Major League shortstop purely on the basis of a written exam.

New York City has the least diverse fire department of any major city in America. While the combined Black and Latino population of New York City is over half the total population of the city, Black and Latino firefighters comprise roughly 4 percent and 7 percent of the FDNY, respectively. More than half of Los Angeles and Philadelphia’s firefighters, and 40 percent of Boston’s are people of color.

Today’s ruling came in a lawsuit that grew out of two Equal Employment Opportunity Commission (EEOC) filings by the Center for Constitutional Rights and co-counsel Levy Ratner, P.C., on behalf of the Vulcan Society, the fraternal order of Black firefighters, in 2002 and 2005. The Department of Justice filed suit against the City of New York based on the EEOC findings in 2007, and the Vulcan Society and several Black applicants intervened to join the suit as plaintiffs. The lawsuit charges the Fire Department of New York with discriminatory hiring practices, and Judge Garaufis has issued several opinions finding unlawful practices by the City beginning as early as 1999.

Visit CCR’s case page for more information on United States of America and the Vulcans Society, Inc. v. City of New York.